MacDonald v. Long
| Decision Date | 13 January 1926 |
| Docket Number | 5232. |
| Citation | 131 S.E. 252,100 W.Va. 551 |
| Parties | MACDONALD v. LONG. |
| Court | West Virginia Supreme Court |
Submitted May 19, 1925.
Rehearing Denied Feb. 10, 1926.
Syllabus by the Court.
Parties will not be permitted to assume successive inconsistent positions in the course of a suit or series of suits in reference to the same fact or state of facts.
Additional Syllabus by Editorial Staff.
Where in suit for dissolution of corporation, it was stated by sworn pleadings on behalf of stockholders and corporation that mill was property of corporation, and that no sale had ever been consummated, such stockholders and corporation were bound by their election and suit for specific performance of contract to purchase such property, entered into before such suit could not be maintained.
Appeal from Circuit Court, Mineral County.
Suit by William MacDonald, special receiver of the Patterson's Creek Milling Company, against Jacob E. Long, for specific performance. From an order decreeing specific performance, defendant appeals. Reversed, and bill dismissed.
R. A Welch, Ernest A. See, F. M. Reynolds, and Emory Tyler, all of Keyser, for appellant.
Wm MacDonald, of Keyser, for appellee.
LITZ P.
The defendant, Jacob E. Long, appeals from an order of the circuit court of Mineral county decreeing specific performance of an alleged contract of sale of real estate between him and the Pattersons Creek Milling Company, a corporation.
The milling company, organized in 1919, owned and operated a grist mill in Mineral county. It possessed no other real estate nor any personalty of consequence. On February 7 1923, the stockholders owning more than 75 per cent. of the outstanding capital stock of the corporation attempted to ratify an alleged sale of the mill, at public auction, to the defendant for $8,000, payable one-third cash, one-third in one year, and the balance in two years. The following day an unexecuted deed from the company to the defendant, for the property, was delivered to him for inspection. Acting upon the advice of counsel, the defendant soon returned the paper and refused to consummate the sale.
On April 14, 1923, the stockholders owning nineteen twenty-eighths of the outstanding capital stock instituted a suit in chancery in said court (1) for the appointment of a special receiver to take charge, and dispose, of said mill as the property of the company; (2) the dissolution of the corporation; and (3) distribution of its assets. The bill in the cause, verified by the affidavit of the president of the company, alleged that the corporation was wholly insolvent and that, by reason of mismanagement and dissension among the stockholders, it was unable to continue business; and further alleged that, in order to avoid the expense of a suit to wind up the affairs of the company, the stockholders had for several months been endeavor ing to dispose of the mill by private sale, "and at one time thought they had consummated a sale" with the defendant, J. E. Long, "but the said sale has not been consummated." The corporation, said Jacob E. Long, who owned 30 shares of its capital stock, and the other stockholders not named as plaintiffs were made defendants. Its sworn answer, filed April 18, 1923, admitted the allegations of the bill and prayed for the relief therein sought. Upon the bill and answer a decree was entered in said cause appointing William MacDonald, the plaintiff herein, as special receiver to take possession of, and rent, the said mill, as the property of the corporation, on such terms and conditions as in his discretion may seem proper. Immediately upon his appointment he had the mill appraised as the property of the company. Thereafter, at May rules, 1923, an amended bill was filed in the cause charging that the...
To continue reading
Request your trial